BRECHT & JAMES

[2013] FamCA 381

FAMILY COURT OF AUSTRALIA

BRECHT & JAMES [2013] FamCA 381

FAMILY LAW – PRACTICE AND PROCEDURE – Case management.

Family Law Act 1975 (Cth)

Goode & Goode [2006] FamCA 1346

APPLICANT: Mr Brecht

RESPONDENT: Mr James

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 692 of 2013

DATE DELIVERED: 8 May 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 8 May 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Williams

SOLICITOR FOR THE APPLICANT: JR Watson Legal Services

SOLICITOR FOR THE RESPONDENT: Ms Gilbert

SOLICITOR FOR THE RESPONDENT: Gilbert & Mattner

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms McNamee

SOLICITOR FOR THE

INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

Orders

1. That all applications for final orders be adjourned for hearing as the second case in the list commencing on 12 August 2013 at 10 am but not before 14 August 2013 as a three day matter and that the evidence in chief of all witnesses be given by affidavit.

2. That by 4 pm on 22 May 2013 the applicant file and serve upon all other parties an amended application setting out with precision the orders to be sought.

3. That by 4 pm on 4 June 2013 the applicant file and serve upon all other parties the affidavits of evidence in chief of all witnesses including the applicant relied upon (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief).

4. That the applicant pay all setting down and trial fees by 4 pm on 4 June 2013.

5. That by 4 pm on 18 June 2013 the respondent file and serve upon all other parties the affidavits of evidence in chief of all witnesses including the respondent relied upon (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief).

6. That by 4 pm on 24 June 2013 the applicant file and serve any affidavit in reply to that of the affidavits of the respondent.

7. That no party file any further material other than as provided by these orders without leave of the Court.

8. That prior to commencement of the trial, the parties determine whether there are to be any rulings required arising out of objections to evidence and such objections be referred to in the parties’ outlines of case.

9. That pursuant to s 62G (2) of the Act, the parties and the children attend upon and at the direction of Ms J for the purposes of the preparation of a family report at the joint expense of the parties to be paid if necessary, by the applicant and the contribution towards that cost shall be an issue at trial.

10. That Ms J be at liberty to inspect the court file and all documents produced under any subpoena to which objection to release has not been taken.

11. That all parties have leave to issue subpoenae for the production of documents by arrangement with the registrar docketed with the management of the file.

12. That all parties have liberty to approach the registrar responsible for the management of the court file to vary the obligations under these orders to ensure readiness for trial.

13. Should any party fail to comply with these orders or the ensuing amending directions of the docketed registrar,

    (a)The Court may relist the case requiring the parties to justify why it should not be taken out of the list; and

    (b)the party who has complied may immediately thereafter file an application in a case supported by an affidavit seeking for the matter to proceed on an undefended basis.

14. That the practitioners for the parties file and serve electronically to … by 4 pm on 12 August 2013 the following:

    (a)a concise set of orders to be sought if different from those already filed;

    (b)a list of the applications and affidavits to be read and, if not the whole affidavit, the relevant paragraphs relied upon;

    (c)a list of objections to evidence upon which rulings are required; and

    (d)a bullet-point summary of argument in relation to the issues in dispute.

15. That the application in a case filed by the father on 7 May 2013 is otherwise dismissed.

16. That the reasons for the dismissal of the said application be transcribed and be made available to the parties.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Brecht & James has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 692 of 2013

Mr Brecht

Applicant

And

Mr James

Respondent

REASONS FOR JUDGMENT

1. This is an application in a case filed on 7 May, returnable today, which happens to be the first day of hearing before a judge for the purposes of setting the matter down for trial.  I have not heard from the applicant who is the respondent to this amended application, nor have I heard from the independent children’s lawyer, but on the basis of the evidence which is contained in two affidavits filed by the paternal grandmother and the father himself on 7 May, I would not make the orders sought. 

2. Paragraph 13 of the orders seeks that the grandfather, and ironically enough, the father himself be restrained by an injunction from discussing the proceedings with the two children who are the subject of the forthcoming proceedings, along with another child, B.  The evidence relied upon is some comment by a psychologist involved with B but that would not convince me that there is a basis to make an injunction.  The evidence does not indicate that there is some problem that needs to be precluded. 

3. Paragraph 14 seeks that the grandfather and the father be restrained from allowing any other person to be present whilst the children are having contact with their father, or that it be on loudspeaker.  As I understand it from counsel for the applicant, who is the respondent to this application in a case, that fact is disputed.  Having regard to what was said by the Full Court in Goode & Goode [2006] FamCA 1346, I am not in a position to make a finding, nor should I do so in an environment such as this, and on that basis I could not grant that order.

4. Paragraph 15 seeks an order that the grandfather be restrained and an injunction granted, restraining him from allowing any other person to be present at a handover except a 13-year-old child, B.  The evidence that supports that is contained in an affidavit by the paternal grandmother who says that a relative attended at the handover point and yelled out in an abusive and aggressive manner, “We want to talk to the kids.  We have got their birthday presents.”  It is very difficult for me to make a subjective judgment about whether those words were abusive and aggressive.  It could equally be open to interpretation that there had been some problem about giving the children their birthday presents.  It sounds remarkably to me like adults behaving badly.  I am not in a position to make a finding of fact in relation to that nor should I.  On that basis I am not prepared to make that order, particularly with a trial only some weeks away.

5. The main application for orders was to transfer the matter to Adelaide;  that is not to proceed, and the other matters set out in the application, save for those two that I will now mention, can be dealt with by simply hearing the matter at trial. 

6. Two other orders sought relate to the maternal grandfather, who was the applicant, undergoing a psychiatric assessment along with the other child, B.  Both of those matters seem to be issues that can be determined by the proposed report writer, Ms J, who has had dealings with the parties in the past.  Ms J, as I understand it, is a psychologist or a social worker so she is in a far better position than I am, reading an affidavit, to determine whether she is concerned about the behavioural traits that might indicate some sort of mental illness.  I shall leave that issue to Ms J to make comment on.  On that basis, the application in a case dated 7 May is dismissed. 

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 8 May 2013.

Associate: 

Date:  27 May 2013